Nervous Victors, Illiberal Measures

Douglas
NeJaime and Reva B. Siegel’s Conscience
Wars1 is an exemplar of a dying breed: a progressive piece that
takes religious freedom seriously for political foes in the
sex-and-reproduction culture wars. In just one generation, those battles have
turned religious liberty, that consensus ideal of American public life, into a
source of the fiercest divisions.2 The conflict now clusters
around clashes between religious believers’ refusals to provide services they
find sinful and others’ entitlements to those services.

Though
the progressive side has made gains, NeJaime and Siegel’s aim is ecumenical: to
offer shared terms for a peace. Their
article is therefore generous, charitable, and restrained. It gives conscience
claims real weight, never doubts their sincerity, and holds back from judging
cases, happier to win wider approval of a framework for deciding them. It is
also scrupulously fair-minded, rehearsing opponents’ views in the words of
articulate advocates. An analysis with these virtues, in this debate, is an
enormous contribution. Here, though, I focus on what I see as two of the
article’s errors—which I think expose surprising roots of our conscience
wars.

First,
for NeJaime and Siegel, a conscience claim’s power to help overturn progressive
policies on sex, marriage, or reproduction should count against granting
it. Second, so should its risk of sending the message that others are
acting immorally.

In
truth, these effects—the “material” harm of shaping policy,3 and the “dignitary” harm of
expressing moral opposition—are features, not bugs, of a healthy regime
of civil liberties. A claimant’s moral or religious integrity matters in
itself. But the corresponding liberties also make room for civil society: for
private associations that shape our loyalties, check the state, and provide
resources for its reform. For these social benefits, potential for political
impact is crucial. Moral stigma, too, can stoke moral reform, by forcing us to
reexamine our complacent assumptions. We shrink these fruits of freedom by
treating the spread of political dissent as a reason to prune civil liberties; by winnowing conscience claims for upsetting mainstream sensibilities.

In a
way, then, NeJaime and Siegel’s missteps betray not too little focus on
believers’ interests, but too much. For NeJaime and Siegel, freedoms of
religion and conscience are only for
the claimants’ sake. Their social effects—stirring up political and moral
dissent—are only perils. Likewise, civil society’s diverse associations,
which these liberties empower, are threats to liberal order, to be tolerated
only at the state’s pleasure, when they bear its image.

My
surface objections to NeJaime and Siegel’s proposal thus point to bedrock
differences over the meaning of liberalism, not just religion. NeJaime and
Siegel’s vision of liberal order makes them anxious victors in the culture
wars, eager to secure gains against dissent of any social consequence.
Classical liberalism, I suggest, offers a superior vision, and more repose.

Part I
sketches NeJaime and Siegel’s analysis, and Part II rejects two of its
features. Part III expands on the reasons to reject these, and Part IV answers
objections. The Conclusion sketches the fault lines within the liberal
tradition here laid bare—fissures that might explain how our nation’s
apparent consensus on the scope of religious liberty crumbled so utterly, so
fast.

I. complicity
claims

Conscience Wars
analyzes religious believers’ legal claims against being made complicit (as
they see it) in others’ sins.4 It focuses on requests for exemptions or
accommodations from legal requirements to facilitate abortion, contraception,
sterilization, and same-sex or non-marital relationships.5 These complicity
claims have grown as traditionalists have lost cultural ground.

NeJaime and Siegel
argue that complicity claims differ—in “form,” “social logic,”6 and cost—from conscience claims that
dotted the Court’s docket from Sherbert
v. Verner7to Employment
Division v. Smith.8 The new claims’ form is to seek distance from others’ sins. Their social logic, or
aim, is to help traditionalists recapture the culture.9 And for both reasons, protecting them
imposes costs on “singled-out” groups.10 The material costs may include delays or
denials of services like abortion, and the dignitary harm is the social
implication that those being refused are sinning. Exacerbating both harms is
the strategic role that complicity claims play in our culture wars, as leaders
enlist believers to assert them in a campaign to win converts to their causes.11

II. counting harms

These harms, NeJaime
and Siegel say, are novel, and they should count against granting such claims.
I doubt that they are novel;12 and I will show that they should not so
count. Here I will grant13 that in weighing complicity claims,
officials should heed the risk of depriving bystanders of material goods to
which the law otherwise entitles them.14 But I reject NeJaime and Siegel’s proposal
to weigh two other effects on third
parties.

First, however, a
word on who does the weighing of harms, and when. Lawmakers consider
third-party harms in carving out accommodations, judges in applying Religious
Freedom Restoration Acts (RFRAs), and both in heeding or applying the
Constitution. The federal and state RFRAs direct courts to exempt people from a
law that substantially burdens their religion, unless applying it to them is
the “least restrictive means” to serving a “compelling state interest.”15 Under the Free Exercise Clause, courts
strike down laws that target religion for special burdens unless they are
“narrowly tailored” to serve a “compelling governmental interest.”16 Both tests, then, require weighing harms.
But how does one decide which harms to count?

The task is subtle.
Making money is in a person’s interest, but no legal harm arises when one
business fairly inches out another. What is the baseline for deciding when
costs become legal harms—and serious enough that avoiding them is
compelling? NeJaime and Siegel give no general answer. But besides the denial
of goods otherwise owed to third parties, they propose two costs that we can
count only at the expense of important liberal values. Certainly, then, we
should not see preventing them as a compelling
interest under RFRA or the Constitution.

A. A Material Harm:
Political Potency

NeJaime and Siegel
see the complicity claims now arising as ominous. Those asserting them invoke
not some benignly oddball belief but the potent traditionalism of the culture
wars. They are not few and isolated, but many and mobilized. What they seek is
not a quiet corner for living out their faith, but a foothold for remaking our
culture.17

The implication is
clear: Officials should discount claims when granting them might empower
believers to push for their views, or even change laws they oppose. We should
be quicker to grant the claims of powerless minorities resigned to their
political defeat (or “conceding a new consensus”).18 We should sooner refuse those who would use their freedom to “contest society-wide
norms.”19 In plain terms, we should favor the Amish
over Evangelicals.20

NeJaime and Siegel
do not say whether it is lawmakers, judges, or both who should consider this
feature of a complicity claim—what I will call its political potency. It may be permissible, if unseemly, for
democratic lawmakers to protect their preferred policies against politically
powerful dissent. But should judges so interfere in the political process,
insulating current policy against those who would challenge it with any hope of
success?

As NeJaime and
Siegel remind us, of course, people denied exemptions can still “express[]”
their concerns and push to “change . . . objectionable
laws.” They retain “all of the resources of speech and political advocacy”
available to others—just not “the
special advantage of an exemption.”21 But calling exemptions a “special
advantage” is tendentious. It assumes that the default in a constitutional
democracy is not to protect
conscience claims that might make a political splash.22 Only then does protecting them anyway seem
like favoritism.23

It is likewise
unfair to say that what religious traditionalists seek, in the absence of “laws
enforcing traditional sexual norms,” is “to
enforce those norms” through exemptions “against”
others.24 Legally enforcing a norm against someone
suggests coercing her to follow it. So NeJaime and Siegel are lumping
traditionalist-conduct exemptions
together with legal enforcement of
traditionalist views. That seems fair only if one assumes that the default is
not to accommodate these views—so that doing so seems like a gratuitous
imposition on others. Only then does actually
coercing traditionalists to
violate their consciences seem like the neutral norm.

Yet NeJaime and
Siegel take religious liberty seriously. So why do they give political potency
any weight? Here is a first hint that they focus too narrowly on religious
liberty’s benefits to those who claim it, seeing its wider effects only as
harms to be managed.25

B. A Dignitary Harm:
Moral Stigma

Heightening that
suspicion is NeJaime and Siegel’s proposal to weigh another factor against
complicity claims: dignitary harm. Conscientious refusals to deal, they say,
are salvos in a culture war. A certain message resounds from them, whatever the
refusing party herself might mean or say.26 Refusals to provide morning-after pills,
for instance, tell women that what they seek is sinful or wrong—even that
they are sinners.27 This is stigmatizing. And a thousand such
refusals, mobilized by zealous generals in our culture wars, only intensify
what I will call moral stigma28—the harm of being told (even just by
deeds) that decisions central to your identity are immoral.

Taking moral stigma
into account is even more problematic than weighing political potency. First,
counting it can be self-undermining because fear of it can be self-fulfilling.
The more that we—or officials, in weighing complicity claims—say
that a policy or belief expresses disdain for a group, the more it will take on
that social meaning. Lawmakers or judges trying to fight the harm might thus
extend it. This is not to blame the victims as hypersensitive. It is to accept
what NeJaime and Siegel make central: that social meaning depends on diffuse
social facts, not on any given person’s state of mind.

Second, in many
disputes, both sides could claim with equal force that a decision against them
would morally stigmatize them. Grant that exemptions from baking same-sex
wedding cakes tell gay couples that intimacies central to their identity are
immoral. What about denyingthe
bakers’ claims? Won’t that tell them—and traditional Muslims, Orthodox
Jews, and Christians—that beliefs central to their identity are bigoted?
If exemptions from performing abortions tar women who’ve had them, coercing
prolife doctors must brand them enemies of women’s equality.29 On most serious issues, any side might feel
deeply stigmatized by rival actions or policies.

NeJaime and Siegel
might reply that sometimes the stigma is justified, because the targeted view
is deplorable. Maybe. But to curb rights to expressive conduct on that basis
is, as discussed below, illiberal—toxic to interests that classical
liberalism has rightly served.

So far, we have
pieced together from NeJaime and Siegel’s proposals a picture of the purpose and beneficiaries of civil liberties: Religious liberty and conscience rights help
only those who exercise them. The rest of us stand only to lose if another’s freedoms challenge our
policies or moral convictions. Perhaps that is why, on this view, actions
expressing dissent deserve most protection when they are least consequential: when the odd
minority-religious believer, conceding political defeat, pleads to be left
alone.30

III. the virtues of freedom

Against this honest
but blinkered vision, this Part argues that freedoms of religion and conscience
serve more than the claimants’ interests; for others in society, they enable
moral reform. But we would squelch this social benefit—and compromise
even the case for the claimants’ rights—by treating political potency and
moral stigma as legal harms.

A. Benefits to the
Claimant

Liberties of
conscience and religion protect our ability to fulfill moral and religious
duties as best we know how; they protect the coherence of our
convictions and actions. That integrity is valuable in itself, and always at
risk of being compromised by law. For the claimant, then, these liberties
protect her basic interest in integrity, as far as the common good allows.

This sort of justification
finds support on both sides of our culture wars and deep in our tradition. It
is cited by LGBT advocates as well as social conservatives.31
James Madison lists it first in his Memorial
and Remonstrance Against Religious Assessments.32
Michael McConnell calls it “traditionally the most important argument.”33And it is one that NeJaime and Siegel can accept.

But it is in some
tension with their proposal to treat moral stigma as a legal harm. It’s simple:
In a diverse society, religious liberty always
creates moral stigma. Religious freedom includes nothing if not the rights to
worship, proselytize, and convert—forms of conduct (and speech) that can
express the conviction that outsiders are wrong.34 Perhaps not just wrong, but deluded about matters of cosmic importance
around which they have ordered their lives—even damnably wrong.

This can hold within
religions, too—even among Christians allied in the sex-and-reproduction
culture wars. On the Catholic view, for instance, worship of the Eucharist
ought to be the organizing principle of one’s life;35 for Evangelicals, making it so might mean
building one’s identity on idolatry—a violation of literally the First
Commandment.36 In a world full of conflicting faiths or
even denominations, then, religious freedom is the ultimate source of moral stigma.37

But not the only
one. Actions based on moral views
held to be objectively true might also impose it. At a dinner out with friends,
a vegan’s order of tofu might suggest judgment of her friends’ choice of beef.
That hardly favors her ordering tenderloin—and her friends should agree.38

To be sure, in the
religious context, NeJaime and Siegel would deny that we should whittle away at
rights to worship or convert where exercising them would imply that others are
sinning. They might set different standards for these dimensions of religious liberty. But on what ground? Yes,
they are central to religious freedom, but so is freedom of conscience. If the
power to stigmatize should count against the latter, why not against the
former?

Moreover, since we
certainly won’t suppress the former
and far more pervasive exercises of religious liberty, how much good would it
do to stamp out only the moral stigma created by complicity claims caught up in
culture wars? The reduction in public rancor would be slight, but the cost for
each person coerced against her conscience quite grave. Counting denials of
material goods is one thing. But so far, I see little public good, and some
inconsistency or harm, in legally counting moral stigma—painful though it
can be, culture war or not.

B. Social Benefits

But these
doubts—and those about cognizing political potency—only sharpen if
we consider the social benefits of
freedoms of conscience and religion. These liberties foster the institutions
that populate civil society, and jar us out of moral complacency. They can
limit the state’s excesses and foster personal and political reform. But these
purposes are more pressing, not less, where the beliefs protected would upset
mainstream policies or sensibilities. Socially, then, political potency and
moral stigma are part of the point.

1. Flourishing
Civil Society

The first social
benefit of freedoms of conscience and religion is to create the private
sphere—to distinguish in theory, and to protect in practice, private
associations from the state. Civil society and religious freedom thus have
common roots. Or rather, religious freedom is the root and civil society the outgrowth.
Historically, the former really was our “first freedom.” Thus, from McConnell:

Long before liberalism . . . the division between
temporal and spiritual authority gave rise to the most fundamental features of
liberal democratic order: the idea of limited government, the idea of
individual conscience and hence of individual rights, and the idea of a civil
society, as apart from government, bearing primary responsibility for the
formation and transmission of opinions and ideas.39

McConnell shows how Christian theology long justified a division of
the spiritual and temporal into separate domains, under separate authorities.
That division “at the heart of our First Amendment” enabled “a more general
liberal theory of government” by puncturing the “omnicompeten[ce]” of “the
political sphere.”40 It made clear
that government was not the highest authority; that it was subject to
transcendent moral limits, and meant to serve people’s independent rights and
interests. Harold Berman has shown in more detail how civil society thus grew
into its own.41

And that story has a
moral for our politics. Associations that mediate between individuals and the
state—religious and other “nomic”42 communities—have their own value, as
expressions of private initiative and self-determination. But as cultural
authorities separate from the state, they
also limit its power and check its “hegemonizing ambitions.”43 Even our jurisprudence has come to see them
as “critical buffers between the individual and the power of the State,” in
Justice William Brennan’s words.44 They both create the private sphere and
shield it from tyranny.

To be clear,
associations do more than give us occasions to exercise our liberties against
the state. They empower us to do so,
by giving us separate identities—by forming our loyalties and
motivations.45 Without them, bare individualistic liberties would count for little; we
would lack resources to use them well. Just as freedom of speech requires, in
Jack Balkin’s phrase, an “infrastructure of free expression” consisting of
“institutions, practices and technological structures” to “foster” it,46 so do all our freedoms.47 As Balkin observes, this infrastructure
includes “churches, educational institutions, and charities.”48 So it is served by religious institutions’
autonomy—and by freedom of expressive association, which the Supreme
Court calls “crucial in preventing the majority from imposing its views”
on dissenting minorities.49

Freedoms of
conscience and religion, fortified by free association, have thus fenced in the
state’s claims and made civil society thrive. But we take direct aim at these effects by demoting claims made by institutions
or movements with political muscle and ambition.

2. Moral and
Social Reform

Freedoms of
religion, conscience, and association don’t just protect associations that
shape our identities. Empowering private sources of moral authority—even,
indeed especially when doing so
intensifies moral debate—can also lead to moral reform. Personally, it
does us the painful but needed service of disturbing our dogmatism about
ultimate questions. It likewise prevents political victories or defeats from
ossifying into orthodoxies.

As long as civil
society’s ideological currents are allowed to run freely, we all enjoy a
steadier flow of fresh ideas about morality, religion, and politics. Mainstream
assumptions are challenged by countercurrents; no cultural tide becomes too
strong to turn. That is why some of our greatest reforms first sprouted in the
soil of civil society, long irrigated by religion. Consider the movements for
abolition, civil rights, peace, and more open immigration.50

In this way,
freedoms of speech and conscience build off each other. John Stuart Mill
famously argued (to switch to the usual metaphors) that a marketplace of ideas
allows us to test ours against rivals and appropriate the truth more deeply.51 But freedoms of conscience and religion
also serve that market. As we’ve seen, they furnish ideas traded on it, and
empower those selling them. But to do so, these rights must be protected
evenhandedly. The state cannot play the crony capitalist with ideas, giving
stronger protections to those it finds congenial. Or as Justice Robert Jackson
wrote, in a case that (fittingly) combined religion and free speech: it is a
“fixed star in our constitutional constellation . . . that no official, high or
petty, can prescribe what shall be orthodox in politics, nationalism, religion,
or other matters of opinion.”52

These points weigh
against NeJaime and Siegel’s proposals. At the personal level, we are roused
from dogmatism not simply by the detached observation that someone somehow
disagrees with us. Important is what Andrew Koppelman, a longtime advocate of
socially progressive causes, calls “the open collision of moral views,” which
liberalism has long seen as a benefit:

When John Stuart Mill’s classic defense of free
speech balances liberty against harm, Jeremy Waldron has observed, that
balancing cannot count as harm the moral distress of having your most cherished
views denounced . . . A core value of free speech is that it will and must
induce such distress. Mill, and liberalism more generally, places great value
on “ethical confrontation – the open clash between earnestly held ideals
and opinions about the nature and basis of the good life.” Moral distress, “far
from being a legitimate ground for interference . . . is a positive and healthy
sign that the processes of ethical confrontation that Mill called for are
actually taking place.”53

The moral distress of having your ideals blasphemed is thus a boon,
even when it is also a bane. Counting moral stigma against a claim doesn’t
simply undermine religious liberty.54
It also shields us from the moral confrontation that might force us to rethink
and reform our lives.

Political reform,
too, requires more than freely circulating dissent; it requires giving ideas a
real chance to land, to make political impact. We oppose this goal head-on by
punishing expressive conduct for its political effectiveness—by treating
political muscle as a reason to ban behavior we might otherwise (for the
claimant’s sake) allow.55

In short, what
NeJaime and Siegel see as legal harms of complicity claims—moralized
offense and political power—have been means to social reform. They don’t
serve this goal in every case. But at any moment, almost by definition, the
majority is in no position to tell. So we must give them wide berth.

IV. objections

Just how wide should that berth be? Is it not sometimes necessary to turn down
liberty claims for their political potency, or fight moral stigma by law? Here
I address these objections.

A. Politically
Entrenching Certainties?

Some moral principles seem certain enough that we can
entrench them—by protecting them against political
turbulence—without risking a missed opportunity for social reform.

For a real-life example, take the IRS’s decision in 1970 to
revoke Bob Jones University’s tax-exempt status because of its campus ban on
interracial dating.56 We can be
certain that Bob Jones’s principles were wicked—that punishing the
university for holding them didn’t mute a voice for genuine reform. But
wouldn’t my argument condemn the IRS’s decision as illiberal? (Set aside its
legality.) Tax-exemption, after all, fosters charities that span the
ideological spectrum. It subsidizes civic associations that—on my
argument—can serve social reform only if we don’t punish them for
political effectiveness (or offensive morals). Yet we might see the IRS’s
revocation as an attempt to do just that: to shore up then-fragile political
gains against racism (or to punish action based on degrading ideas).

But the Supreme Court itself was eager to quarantine the
IRS’s decision,57
and for reasons similar to mine.58 The Court
upheld (as legally authorized) the agency’s finding that the dating ban was
against public policy. But it implicitly set a very high bar for such findings
in the future. For example, it made much of the fact that every branch of the
federal government had opposed racial segregation firmly, in sundry ways and
for decades.59
It thus sought to ensure that tax exemption wouldn’t later be revoked simply because, say, the IRS Commissioner
found a group’s values demeaning.

That caution is what my argument calls for. It would be a
mistake to allow ourselves much easier ways to entrench political victories (or
punish offensive views)—even just partially, as NeJaime and Siegel would,
by having judges penalize claims for their political potency (or moral stigma).
After all, we often disagree as vehemently about what should lie beyond
ordinary politics as we do about the right answers on issues within it. Nor is
the perceived importance of a principle a barometer of its correctness: Avid
pro-life and pro-choice citizens agree that abortion is a question of the
highest moral importance, but they would entrench exactly opposite regimes, and
find exactly opposite views to be morally demeaning of some group or other.

History shows that humanity’s most certain, centuries-long
consensus can be wrong, and disastrously so: Witness the world-historical
record on slavery or women’s rights. One benefit of our constitutional
democracy, then, is that it makes political entrenchment hard. I see no
footing, above the fray, from which to decide which matters should be
exceptions to that norm. Certainly, the monumentally controversial questions of
our culture wars are no candidates.

B. Stamping Out the
Worst Moral Stigmas?

What about moral
stigma? If erasing it is always a
dangerous basis for official action, what about canonical cases and laws like Brown v. Board of Education60 andTitle
II of the Civil Rights Act of 1964?61 Both focused on eradicating
“institutionalized humiliation.”62 The “fundamental object” of the latter was
to “vindicate ‘the deprivation of personal dignity that surely accompanies
denials of equal access to public establishments.’”63

The state should
indeed fight the peculiar social harm that
results from being excluded from the public square. That was the focus of Brown and the Civil Rights Act (as the
last quotation shows). Driving people out of public gathering spaces drives
them to the social margins. The message that a certain group has no place in
our public life doesn’t serve civil society; it depopulates it. So my
civil-society-based argument could support efforts to fight racial humiliation
by integrating schools, restaurants, theaters, and inns.64

Of course, Jim Crow
was about avoiding contact with certain patrons, by refusing them any service
at all; complicity claims are about denying certain services—whoever comes
in to order them—while avoiding contact with no one. NeJaime and Siegel
discuss not doctors’ refusals to serve women, or florists’ refusals to serve
gay people, but refusals to perform
abortions or celebrate weddings
deemed sinful.65 Allowing enough of these refusals to
dominate a local market might have material
effects. But even that wouldn’t produce the dignitary harm at issue in Brown and the Civil Rights Act. There is
a vast difference between the humiliation of being denied a seat at the table
of public life and the pain of sitting by people who oppose decisions you
prize. The first, rooted simply in others’ contempt, can and must be avoided.
The second, stemming from their consciences, is unavoidable in free societies
and conducive to reform. It is the latter sort of offense that we should not
punish. We should brook no freestanding
right not to be offended.

Moral stigma is a
real cost. But tolerating it is a
fair price for freedom with dividends of its own: an open society, rich in
dissent. We cannot advance these goals while rejecting otherwise justified
civil liberties simply because they give offense. As attractive as that rejection
will necessarily seem to a majority in every case, it is a sure path to
stultification.

Conclusion: Two Visions Of Liberalism

The vision that
emerges from NeJaime and Siegel’s treatment is one of culture-war victors
nervous to secure the peace before fragile gains are dispersed. They see social
conflict as a barely contained threat to individual rights and peaceful
coexistence, which they would have the state neutralize by keeping tabs on
associations and favoring culturally inert dissent.

So it is not
political vindictiveness that motivates this proposal, or indifference to
religious interests, but the honest Rousseauian fear that “[i]t is impossible
to live at peace with those whom we regard as damned.”66 Rousseau took this fear to extremes.
Believing that “all institutions” that “destroy[] social unity” are
“worthless,” he favored a civil religion to “bind[] the hearts of the citizens
to the State,” unmediated by rival private authorities.67 But we catch hints of the same will to tame
in NeJaime and Siegel’s abiding anxiety about moral and political conflict.

That anxiety has
also laced our jurisprudence on religious establishments and tense social
issues. In Lemon v. Kurtzman, the
Supreme Courtcalled “political
division along religious lines” a “principal evil” targeted by the First
Amendment.68 In Planned
Parenthood v. Casey, the Court seemed
existentially desperate for the nation to accept its terms for a truce in the
abortion wars.69

Competing with this
nervousness in our tradition is a more sanguine view of the messiness of civil
society. If the first vision unites Rousseau and contemporary progressives,
this second links thinkers like Burke70 and Tocqueville71 to today’s more classically minded
liberals. It sees divisions of principle as the political norm,72 pluralism as our “native condition,”73 and private institutions as growths that do
not choke the common good but give it color and life. Justice depends not on
pruning them to contain conflict or moral distress, but bringing them into
“unity of a limited order.”74 Its aim is not a “contrived homogeneity”
but a “balance of power among sects.”75

Tending to civil
society so understood requires what Jefferson Powell calls the “constitutional
virtue” of humility. It requires accepting the Constitution’s limits as a
framework mainly for deciding amid debate, not eliminating it; for leaving most
“divisive . . . social issues” to be “thrashed out” in “ordinary, revisable
politics.”76 And it requires contentment to wager on
what cannot be guaranteed:77 that letting social institutions grow
freely, even illiberally, will not bring our experiment in ordered liberty to
ruin. Or at least that abiding that risk is the lesser evil.

Sherif
Girgis is a J.D. candidate at Yale Law School and a Ph.D. candidate in
philosophy at Princeton University. He is co-author of What Is Marriage? Man and Woman: A Defense (Encounter Books, 2012) and of Religious Liberty, Tolerance, and Bigotry(forthcoming with Oxford
University Press).

For discussions on this topic or comments on
this piece, he thanks (but absolves of all complicity in his views) Akhil Amar,
Ryan Anderson, John Corvino, Marc DeGirolami, Ben Eidelson, Matt Franck, Rick
Garnett, Robert George, Andrew Koppelman, Stefan McDaniel, Reva Siegel, and the
editors of the Yale Law Journal, especially Josh Divine.

By “material” harms, NeJaime and Siegel refer mainly to denials of goods otherwise owed to third parties, which this Essay sets aside. But they also worry about another “material” effect of conscience claims by powerful groups. They fear that these groups might not just limit others’ access to legally guaranteed goods but lead to repeal of the laws guaranteeing them. What I reject is counting this latter possibility against a conscience claim.

4

Id. at 2520.

5

Id. at 2520 n.12.

6

I use the same terms as the authors. E.g.,NeJaime & Siegel, supra note 1, at 2516.

7

374 U.S. 398 (1963).

8

494 U.S. 872 (1990).

9

NeJaime & Siegel, supra note 1, at 2542.

10

Id. at 2521.

11

Id. at 2566.

12

See, e.g., Marc O. DeGirolami, Free Exercise by Moonlight, San Diego L. Rev. (forthcoming) (manuscript at 26-30), http://ssrn.com/abstract=2587216 [http://perma.cc/JL4D-6C6Y] (showing precedents in Free Exercise case law for conscience claims similar in almost every respect to those that NeJaime and Siegel highlight).

13

I suspect that only an important subset of such goods should count, but I set that aside here.

Decisions about cost allocation in the face of a legally cognizable religious objection are the government’s, not the claimant’s. In Hobby Lobby, it was the federal government’s decision, not Hobby Lobby’s, not to allocate the cost of contraception coverage to “society as a whole” (through the mechanism of taxation, for example) but instead to impose it on private religious objectors. . . . [Nothing] in the nature of [Hobby Lobby’s] objection had the necessary effect of imposing the costs of its objection on third parties; it had that effect only because of the scheme selected by the government.

Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531-32 (1993).

17

NeJaime & Siegel, supra note 1, at 2543.

18

Id. at 2563.

19

Id.

20

Compare id. at 2525-26 (favorably emphasizing the modest social impact of the Amish in Wisconsin v. Yoder), with id. at 2552-65 (highlighting, with concern, Catholic and Evangelical ambitions to evangelize).

21

Id. at 2584 (emphasis added).

22

But see infra Section III.B (arguing that potential political reform is a valuable historic goal of religious liberty).

23

Perhaps NeJaime and Siegel are concerned that RFRAs unfairly provide exemptions for religious but not secular conscience claims. If so, I agree that (perceived) moral and religious duties should be treated alike.

24

NeJaime & Siegel, supra note 1, at 2591 (emphasis added).

25

I discuss problems with this assumption infra Section III.B.

26

NeJaime & Siegel, supra note 1, at 2575.

27

Id. at 2576.

28

I use this term to distinguish this harm from other species of dignitary harm, which might contain no moral accusation.

James Madison, Memorial and Remonstrance Against Religious Assessments (1785), http://founders.archives.gov/documents/Madison/01-08-02-0163 (arguing that, because religion “can be directed only by reason and conviction, not by force,” it must “be left to the conviction and conscience of every man”).

See, e.g., Dan Corner, John 6:53 and the Catholic Holy Eucharist, Evangelical Outreach, http://www.evangelicaloutreach.org/communio.htm [http://perma.cc/9UNW-4DG9] (calling worship of the Eucharist “faulty worship in the form of idolatry”).

37

Thanks to Andy Koppelman for discussion on this point.

38

Ben Eidelson suggested this example.

39

McConnell, supra note 30, at 1244.

40

Id. at 1247-49. See also, e.g., Laurence H. Tribe, American Constitutional Law § 14-11, at 1226 (2d ed. 1988) (discussing the ways in which American constitutional law ensures that “secular and religious authorities . . . not interfere with each other’s respective spheres of choice and influence”).

41

See, e.g., Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition 87-88 (1983).

Id. at 592 (“We are bound to approach these questions with full awareness that determinations of public benefit and public policy are sensitive matters with serious implications for the institutions affected; a declaration that a given institution is not ‘charitable’ should be made only where there can be no doubt that the activity involved is contrary to a fundamental public policy.”).

58

Id. at 609 (Powell, J., concurring) (“[T]he provision of tax exemptions to nonprofit groups is one indispensable means of limiting the influence of governmental orthodoxy on important areas of community life.”).

59

Id. at 593 (“Over the past quarter of a century, every pronouncement of this Court and myriad Acts of Congress and Executive Orders attest a firm national policy to prohibit racial segregation and discrimination in public education.”).

Note that Title II’s focus on public accommodations is narrow: theaters, restaurants, and inns. It leaves out the smaller businesses often at stake in the complicity claims on which NeJaime and Siegel focus.

65

For example, Barronelle Stutzman, a florist penalized for refusing to make arrangements for Robert Ingersoll’s wedding to his same-sex partner, said that she had served him fruitfully for years, aware that he was in a same-sex relationship. Barronelle Stutzman, Why a Friend Is Suing Me: The Arlene’s Flowers Story, Seattle Times (Nov. 9, 2015),http://www.seattletimes.com/opinion/why-a-good-friend-is-suing-me-the-arlenes-flowers-story [http://perma.cc/BU5V-ZS42] (“I always liked bouncing off creative ideas with Rob for special events in his life. . . . For 10 years, we encouraged that artistry in each other. I knew he was in a relationship with a man and he knew I was a Christian. But that never clouded the friendship for either of us or threatened our shared creativity—until he asked me to design something special to celebrate his upcoming wedding.”).

Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 866-67 (1992) (joint opinion of O’Connor, Kennedy & Souter, JJ.) (noting that, in “intensively divisive” cases, the Court “calls the contending sides of a national controversy to end their national division by accepting a common mandate”).

Cf. McConnell, supra note 33, at 457 (“On the whole, even if some subgroups are not liberal, a pluralistic society seems more likely to live harmoniously if it extends freedom of speech, association, and religion to seemingly illiberal subgroups than if it attempts to weed out dangerous voices.”).